What we know about NEPA changes in 2025
National Environmental Policy Act (NEPA) practitioners have become accustomed to changes in regulations and guidance that govern their work over the past eight years. However, the potential magnitude of changes to NEPA on the horizon (and in the immediate rear-view mirror) has never been greater.
Recent executive orders (EOs) affecting NEPA analysis, the Council on Environmental Quality (CEQ) interim final rule removing NEPA regulations, CEQ NEPA Implementation Guidance, and federal court actions have changed and will continue to change how practitioners get work done.
Executive orders
EO 14154, Unleashing American Energy
As part of many Day 1 activities, President Trump issued EO 14154 with wide-ranging potential implications for NEPA. This EO rescinds the 1977 EO 11991, Related to Protection and Enhancement of Environmental Quality, that directed CEQ to issue NEPA implementing regulations. EO 14154 provided CEQ until February 19, 2025, to propose rescinding CEQ’s NEPA implementing regulations and in their stead provide guidance on implementing NEPA. CEQ was further directed to convene a working group to coordinate the revision of agency-level NEPA implementing regulations for consistency. The EO states that this guidance is intended to expedite permitting approvals and meet deadlines established in the Fiscal Responsibility Act (FRA).
The Trump Administration has also indicated a shift in focus by rescinding several Biden EOs concerning climate change (including EO 13990, 14008, 14013, 14027, and14030, among others), energy (including EO 14037, 14057, and 14082), and environmental justice (including EO 14008 and 14096). This EO also called for the Environmental Protection Agency (EPA) to consider the legality and applicability of the 2009 EPA Endangerment Finding for Greenhouse Gases, which is the legal basis for regulation of greenhouse gas emissions under the Clean Air Act. This EO also disbands the Interagency Working Group on the Social Cost of Greenhouse Gases and directs EPA to issue new guidance on changes to the social cost of carbon.
Finally, this EO directs the National Economic Council and the Office of Legislative Affairs to jointly prepare recommendations to Congress on how to facilitate the permitting and construction of interstate energy transportation and other critical energy infrastructure and provide greater certainty in the federal permitting process, including, but not limited to, streamlining the judicial review of the application of NEPA.
EO 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity
On day two, the new administration issued EO 14173, which rescinded EO 12898 of February 11, 1994, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations. This is the original administrative directive for the consideration of environmental justice in federal actions. With EO 14173 and other EOs, the new administration has rescinded all executive orders supporting consideration of environmental justice.
CEQ actions
CEQ interim final rule: Removal of NEPA implementing regulations
On February 25, 2025, CEQ published an interim final rule in the Federal Register to remove the CEQ regulations implementing NEPA from the Code of Federal Regulations (40 CFR Parts 1500-1508), effective April 11, 2025. CEQ states that it is doing so pursuant to EO 14154 which called for rescission, and which rescinded EO 11991 (in effect since 1977) that had directed CEQ to issue NEPA regulations. CEQ concluded that it lacks the authority to issue binding rules in the absence of the now-rescinded EO 11991 and thus proposes withdrawing the CEQ NEPA implementing regulations in their entirety. CEQ also notes that it is not undertaking to reconsider the substance of the prior 2020 NEPA implementing regulations or the Phase 1 or Phase 2 NEPA implementing regulations developed under the Biden Administration, as it is not proposing any replacement regulations as part of the interim final rule. Public comments on the interim final rule are due March 27, 2025.
CEQ memorandum for heads of federal departments and agencies on implementation of NEPA
On February 19, 2025, CEQ sent a memorandum to heads of federal departments and agencies entitled, Implementation of the National Environmental Policy Act, for the purpose of providing guidance on implementing NEPA to expedite and simplify the permitting process pursuant to EO 14154. This memorandum sets out a process for revising agency NEPA procedures as well as guidance for both interim practice while the agency procedures are being revised and on content for revised (or new) agency procedures. Furthermore, the memorandum provides a list of topics that, at a minimum, should be addressed in the revised (or new) agency procedures. According to the memorandum, the content guidance is intended to promote consistency and predictability across the federal government in terms of implementing NEPA.
Process for revising agency NEPA implementing procedures
The memorandum states that federal agencies should revise their NEPA implementing procedures no later than 12 months after the date of the memorandum to expedite permitting approvals and for consistency with NEPA, as amended by the FRA in 2023. Agencies must develop a proposed schedule for updating their procedures and submit it to CEQ along with a lead point of contact for NEPA procedures within 30 days of the memorandum. Agencies must also consult with CEQ while developing or revising their NEPA procedures.
The guidance directs that federal agencies should provide a minimum of 30 days, but no longer than 60 days, for public comment on their proposed NEPA procedures “to the extent that public comment is required.” The guidance goes on to say that if public comment is not required, agencies should not undertake public comment. Some agencies issue their procedures as regulations with a formal rulemaking process (in which case they would need to accept public comments), while other agencies issue their procedures as agency guidance documents (in which case, the guidance directs they should not accept public comments).
CEQ will provide ongoing guidance and assistance through monthly meetings of the Federal Agency NEPA Contacts and the NEPA Implementation Working Group required by section 5(c) of EO 14154.
Interim NEPA practice while agency procedures are being revised
Until revisions are completed via the appropriate rulemaking process, where required, agencies are directed to continue to follow their existing practices and procedures for implementing NEPA consistent with NEPA, EO 14154, and the February 19 CEQ Memorandum. Agencies are directed not to delay NEPA analyses during this interim period. The guidance directs that although CEQ is rescinding the current NEPA implementing regulations, agencies should consider voluntarily relying on those regulations in completing ongoing NEPA reviews or defending against challenges to reviews completed while those regulations were in effect.
Guidance on development of revised agency procedures
Section 103 of NEPA requires agencies to review their authorities, policies, and procedures and propose measures to align them with the intent, purposes, and procedures of NEPA. CEQ encourages agencies to use the 2020 NEPA regulation rule, Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, as an initial framework for the development of revisions to their NEPA implementing procedures, consistent with the CEQ NEPA implementing guidance, EO 14154, and to the extent permitted by applicable law.
CEQ states that agencies should consider several items, including the preparation of NEPA documents by project sponsors; incorporating deadlines in their NEPA processes; limiting alternatives that are considered; how effects are addressed; defining when federal funding results in a “major federal action” that triggers NEPA; eliminating environmental justice consideration; identifying thresholds for activities or decisions that are not subject to NEPA; along with procedures for when the NEPA process can be terminated (where appropriate). Other items for agency consideration are how to reevaluate and supplement Environmental Assessments (EA) and Environmental Impact Statements (EIS).
The guidance on its own does not represent a substantial change in NEPA requirements. While the guidance describes that environmental justice should not be included anymore in NEPA documents, that change is occurring due to the rescission of the underlying prior EOs requiring consideration of environmental justice, specifically EO 12898, and to the rescission of the CEQ NEPA regulations. The rescission of the CEQ NEPA implementing regulations is a separate rulemaking and is the logical implication of the ruling in the Iowa v. CEQ case (see below). The CEQ NEPA implementing guidance in many areas (such as time limits, definition of “major federal action”, etc.) is only describing the NEPA statutory requirements and actually expands on the statutory language when, for example, calling for agency development of public involvement protocols.
The reference to the 2020 CEQ NEPA implementing regulations as an initial framework for developing agency NEPA implementing procedures was to be expected with the change in administration and should serve as a reasonable guide to what agency NEPA procedures are likely to entail. With the elimination of the CEQ NEPA implementing regulations in their entirety, NEPA practice will be defined through those developing agency NEPA implementing procedures and there could be substantial changes that could result from them and their application by the current administration. Furthermore, it is almost certain that there will be lawsuits as new agency procedures are put into practice, and this will further define how agencies and practitioners comply with NEPA.
Recent court cases
There are several outstanding (or recently settled) court cases that also have the potential to substantially change which information is reviewed under NEPA and how this law is implemented. Two cases, Marin Audubon Society v. Federal Aviation Administration in November 2024, and State of Iowa vs. Council on Environmental Quality in February 2025, set the stage for the administration to rescind the CEQ regulations: in both cases, the courts found that CEQ never had the authority to issue binding NEPA regulations on other agencies.
Still to be decided is Seven County Infrastructure Coalition v. Eagle County, Colorado, which is currently in front of the U.S. Supreme Court. This case will see the Court weigh in on whether NEPA requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority, including whether or not so-called upstream and/or downstream effects of an action need to be evaluated under NEPA. A decision is expected in spring or summer 2025.
Where we stand today
Effective April 11, 2025, when CEQ completes the rulemaking process, there will be no CEQ NEPA implementing regulations. Federal agencies, however, are required by the NEPA statute to prepare procedures for implementing NEPA. CEQ has issued guidance for the revision of existing agency NEPA implementing procedures to comply with the NEPA statute, EO 14514, and the CEQ guidance. In addition, the U.S. Supreme Court decision in the Seven Counties case could substantially change the consideration of effects in NEPA. The revised agency NEPA implementing procedures will then be the next frontier in the development of NEPA practice as they are required to be completed by February 2026, though some agencies may issue their implementing procedures earlier.
In the interim, agencies have been directed to rely on their existing agency NEPA implementing regulations/procedures and on the NEPA statute. With the removal of the CEQ NEPA implementing regulations, the actual words (and meaning) of the NEPA statute are now, once again, the foundation of NEPA practice. In addition, federal agencies also need to consider decades of NEPA case law including case law on subjects not defined in the statute itself. With the ending of deference to federal agencies in the interpretation of law (per the U.S. Supreme Court ruling in the Loper Bright case that ended so-called “Chevron Deference”), court interpretations of NEPA will almost certainly have a major influence on the course of NEPA compliance in the future.
Wherever NEPA goes next, ICF is here to help
As demonstrated over the past few administrations, the one thing that is certain is that there will be change. This is particularly true if direction from the Executive Branch is provided through executive orders rather than the formal rule-making regulatory process or Congress. However, those orders can be wiped away with the stroke of a pen.
ICF will continue to closely follow these many potential changes and will host an upcoming webinar on NEPA compliance. ICF has helped federal agencies as well as applicants comply with NEPA for decades, through changing interpretations of CEQ regulations, guidance, court rulings, and administrations.